Case Name: Greker II, LLC v. Peter C. Cassini, et al.

Case No.: 2015-1-CV-286986

Plaintiff and Cross-Defendant Greker II, LLC’s Motion to Compel Defendants and Cross-Complainants Peter C. Cassini and Angela Mogielski to Provide Further Responses to Requests for Admission, Form Interrogatories, Special Interrogatories, and Requests for Production of Documents, Produce a Privilege Log and Documents, and for an Award of Monetary Sanctions

Factual and Procedural Background

This action arises out of a dispute regarding the true property line and location of a fence between plaintiff and cross-defendant Greker II, LLC (“Plaintiff”) and defendants and cross-complainants Peter C. Cassini and Angela Mogielski’s (collectively, “Defendants”) neighboring properties in Palo Alto. Plaintiff alleges that the fence separating the properties does not lie on the true property line. (Complaint, ¶ 10.) Rather, the fence is three feet east of the true property line. (Ibid.) Consequently, Plaintiff alleges that it is currently being deprived of the use and enjoyment of several hundred square feet of its property (the “Disputed Property”). (Id., at ¶¶ 14, 17, 20, 23, 27.)

Based on the foregoing, Plaintiff filed a complaint against Defendants, alleging causes of action for: (1) quiet title; (2) injunctive relief; (3) injunctive relief; (4) and declaratory relief.

Currently before the Court is Plaintiff’s motion to compel Defendants to provide further responses to requests for admission, set one (“RFA”), form interrogatories, set one (“FI”), special interrogatories, set one (“SI”), and requests for production of documents, set one (“RPD”); produce a privilege log and documents in accordance with their discovery responses; and for an award of monetary sanctions.

Discovery Dispute

Plaintiff served each of the defendants with virtually identical sets of the RFA, FI, SI, and RPD, seeking information and documents relating to Defendants’ claim of ownership over and/or right to use the Disputed Property. (O’Connor Dec., Exs. 1-8.)

Defendants served Plaintiff with their identical responses to the discovery requests on January 29, 2016. (O’Connor Dec., Exs. 10-17.) Defendants did not produce any documents in connection with their responses. (O’Connor Dec., ¶ 5.)

On February 10, 2016, Plaintiff’s counsel sent a detailed meet and confer letter to Defendants’ counsel, regarding purported deficiencies in Defendants’ responses to the discovery requests. (O’Connor Dec., Ex. 18.) Plaintiff’s counsel requested that Defendants provide amended responses to various requests, produce documents in accordance with their responses, and provide a privilege log by March 1, 2016. (Ibid.)

Defendants’ counsel emailed Plaintiff’s counsel on March 2, 2016, requesting an extension of time to respond substantively to the meet and confer letter. (O’Connor Dec., Ex. 9.) The parties subsequently agreed that Defendants would have until March 8, 2016, to respond to the meet and confer letter. (Ibid.)

Two days after the agreed upon deadline, Defendants’ counsel sent Plaintiff’s counsel a reply letter, indicating that Defendants would provide amended responses to RFA Nos. 2, 4-5, and 19-21, FI Nos. 4.1, 15.1, and 17.1, SI Nos. 11-12, and RPD Nos. 3-4, and would otherwise stand on their objections to the discovery requests. (O’Connor Dec., Ex. 19.) Defendants’ counsel stated that amended responses and documents responsive to the requests would be provided to Plaintiff by March 15, 2016. (Ibid.) Defendants’ counsel also agreed to grant Plaintiff a two-week extension of time to file a motion to compel further responses to the discovery requests. (Ibid.)

Plaintiff did not receive the amended responses or any documents on March 15, 2016. Consequently, Plaintiff’s counsel sent a follow-up email to Defendants’ counsel, requesting that the amended responses and documents be provided to Plaintiff immediately. (O’Connor Dec., Ex. 9.)

The following day, Defendants’ counsel responded via email, indicating that he had not “received information back” from his clients, the amended responses were not ready, and he was “more than happy to extend any time period for [Plaintiff] to file a motion to compel ….” (O’Connor Dec., Ex. 20.)

Subsequently, the parties agreed that Defendants would have until March 30, 2016, to provide Plaintiff with their amended responses and documents responsive to the requests. (O’Connor Dec., Ex. 20.) The parties also agreed that Plaintiff would have a one-week extension of time to file a motion to compel further responses to the discovery requests. (Ibid.)

Despite the parties’ agreement, Defendants did not serve Plaintiff with their amended responses or any documents on March 30, 2016. (O’Connor Dec., ¶ 11.)

On April 1, 2016, Plaintiff’s counsel’s legal secretary, Elena Amaro (“Amaro”), contacted Defendants’ counsel’s office to inquire as to an agreeable hearing date for a motion to compel further responses. (O’Connor Reply Dec., ¶ 3.) Amaro received a return call from Defendants’ counsel’s assistant, Elisa Trees, advising that Defendants’ counsel was agreeable to the proposed hearing date. (Id., at ¶ 4.)

Later the same day, Plaintiff filed the instant motion to compel Defendants to provide further responses to: RFA Nos. 1-2, 4-5, 10, and 12-32; FI Nos. 4.1, 15.1, and 17.1 with respect to RFA Nos. 1-8, 10-13, 15-18, and 22-32; SI Nos. 11-12 and 14-15; and RPD Nos. 3-4. Plaintiff also moves to compel Defendants to produce a privilege log and documents in accordance with their discovery responses. Defendants filed papers in opposition to the motion on April 27, 2016. Plaintiff filed a reply on May 3, 2016.

Discussion

I. Further Responses to the RFA, FI, SI, and RPD

Plaintiff moves to compel Defendants to provide further responses to the RFA, FI, SI, and RPD, arguing that Defendants’ objections are without merit and their substantive responses are incomplete and evasive.

Defendants oppose the motion, arguing that the motion is moot, Plaintiff fails to cite the correct statute(s) authorizing the instant motion to compel further responses, and their objections and substantive responses to the RFA are code-compliant.

A. Effect of Service of Amended Responses

Three days after the instant motion was filed, Defendants served Plaintiff with unverified, amended responses to RFA Nos. 2, 4-5, and 19-21, FI Nos. 4.1, 15.1, and 17.1 with respect to RFA Nos. 1, 3-5, 10-13, 15-18, 22-23, and 25-32, SI Nos. 11-12, and RPD Nos. 3-4. (O’Connor Reply Dec., Exs. 21-28.) On May 2, 2016, Defendants’ counsel provided Plaintiff with copies of the verifications for Defendants’ amended responses. (O’Conner Reply Dec., ¶ 6.)

When discovery responses are served after a motion to compel is filed, the court has substantial discretion in deciding how to rule in light of the particular circumstances presented. (See Sinaiko Healthcare Consulting, Inc. v. Pacific Healthcare Consultants (2007) 148 Cal.App.4th 390, 408-409 (“Sinaiko”).) The court might deny the motion to compel as moot, take the matter off-calendar, order the parties to meet and confer, impose sanctions, or examine the responses to determine if they are code-compliant. (See Sinaiko, supra, 148 Cal.App.4th at p. 409.)

Plaintiff contends that service of Defendants’ amended responses does not render the motion moot because the amended responses were not verified. Plaintiff asserts that the Court should, therefore, address the sufficiency of the amended responses.

While Defendants did not provide Plaintiff with the verifications concurrently with their amended responses, Plaintiff admits that it received copies of the verifications on May 2, 2016. Consequently, the amended responses are verified and Plaintiff’s argument otherwise lacks merit. Nonetheless, the Court notes that Defendants failed to fully comply with the Code of Civil Procedure because they only provided Plaintiff with copies of the verifications and Plaintiff is entitled to the original verifications. (See Code Civ. Proc., §§ 2030.280, subd. (b), 2030.250, subd. (a).) Therefore, Defendants are ordered to serve Plaintiff with the original verifications for their amended responses within 20 days of the date of the filing of the Order. (See Code Civ. Proc., §§ 2030.280, subd. (b), 2030.250, subd. (a).)
Furthermore, the Court is not prepared to address the sufficiency of the amended responses given the substantial number of changes made and the fact that the parties have not yet met and conferred regarding any purported deficiencies in the amended responses.

Therefore, the Court exercises its discretion to DENY Plaintiff’s motion to compel further responses to RFA Nos. 2, 4-5, and 19-21, FI Nos. 4.1, 15.1, and 17.1 with respect to RFA Nos. 1, 3-5, 10-13, 15-18, 22-23, and 25-32, SI Nos. 11-12, and RPD Nos. 3-4 as moot. The parties should meet and confer regarding the amended responses if Plaintiff has any concerns with respect to the same.

B. Remaining Discovery Requests

The remaining discovery requests at issue are RFA Nos. 10, 12-18, and 22-32, FI No. 17.1 with respect to RFA Nos. 4, 6-8, and 24, and SI Nos. 14-15.

1. Procedural Issue

As an initial matter, Defendants argue that the motion to compel further responses, as it pertains to the FI and SI, is improper because Plaintiff’s notice of motion cites statutes authorizing motions to compel initial responses to discovery requests as opposed to Code of Civil Procedure section 2030.300, which authorizes motions to compel further responses to interrogatories.

Defendants’ argument lacks merit. First, Defendants do not cite any legal authority whatsoever indicating that a failure to cite the correct statutory authority for a particular motion requires summary denial of the motion. Second, it is abundantly clear from the arguments set forth in Plaintiff’s moving papers that the instant motion is one to compel further responses to the FI and SI. Thus, Defendants were not prejudiced in any way by the fact that Plaintiff did not cite the correct statutory authority for its motion. Consequently, the purported procedural deficiencies are not grounds for denial of the motion.

2. Meet and Confer

Defendants argue that Plaintiff failed to meet and confer with respect to the RFA because Plaintiff did not object to their position regarding their discovery responses as set forth in their counsel’s March 10, 2016 letter and Plaintiff “never objected to [their] supplemental responses ….” (Opp’n., p. 6.)

A motion to compel further responses to requests for admission and/or interrogatories must be accompanied by a meet and confer declaration “showing a reasonable and good faith attempt at an informal resolution of each issue presented by the motion.” (Code Civ. Proc., §§ 2016.040, 2033.290, subd. (b), 2030.300, subd. (b).) The rule requiring parties to meet confer is designed “to encourage the parties to work out their differences informally so as to avoid the necessity for a formal order” which, in turn, “will lessen the burden on the court and reduce the unnecessary expenditure of resources by litigants through promotion of informal, extrajudicial resolution of discovery disputes.” (Townsend v. Super. Ct. (1998) 61 Cal.App.4th 1431, 1435.) The level of effort at informal resolution that satisfies the “reasonable and good faith attempt” standard depends upon the circumstances of the case. (Obregon v. Super. Ct. (“Obregon”) (1998) 67 Cal.App.4th 424, 431.)

Here, Plaintiff adequately met and conferred with Defendants regarding their responses to the RFA because its counsel sent Defendants’ counsel a detailed meet and confer letter on February 10, 2016, regarding purported deficiencies in Defendants’ responses to the requests at issue in this motion. (O’Connor Dec., Ex. 18.) The fact that Defendants’ counsel later disagreed with Plaintiff’s position, as set forth in its counsel’s correspondence, and offered to supplement other requests does not somehow undermine the adequacy of Plaintiff’s meet and confer efforts. Notably, Defendants cite no legal authority, and the Court is aware of none, providing that Plaintiff was obligated to or otherwise should have asserted some sort of objection to Defendants’ counsel’s March 10, 2016 letter. Additionally, the fact that Plaintiff did not identify any deficiencies in Defendants’ amended responses does not demonstrate that Plaintiff failed to adequately meet and confer. The instant motion addresses Defendants’ original responses to the RFA, not Defendants’ amended responses. Thus, Defendants’ arguments regarding Plaintiff’s meet and confer efforts lack merit.

3. Legal Standard

A party propounding interrogatories and requests for admission may move for an order compelling further responses if that party deems an answer is evasive or incomplete and/or an objection is without merit or too general. (Code Civ. Proc., §§ 2030.300, subd. (a) and 2033.290, subd. (a).) The statutes do not require any showing of good cause in support of a motion compelling further responses to interrogatories or requests for admission. (Code Civ. Proc., §§ 2030.300 and 2033.290; see also Coy v. Super. Ct. (Wolcher) (1962) 58 Cal.2d 210, 220-221 (“Coy”).) The burden is on the responding party to justify any objections or failure to fully answer. (Coy, supra, 58 Cal.2d at pp. 220-221.)

4. RFA Nos. 10, 12-18, and 22-32

RFA Nos. 10, 12-18, and 22-32 ask Defendants to admit that: the westerly portion of the fence is constructed on the Everett Property; they do not own the land within five feet of the eastern side of the fence (the “GE Property”); they do not own any portion of Everett Property; the GE Property has been exclusively used by them and their clients as a driveway and parking area from mid-2011 to the present; the GE Property has not been used for the benefit of the Everett Property; the fence prevents Plaintiff from accessing the GE Property; they have not paid property taxes on any portion of the Everett Property or the GE Property for a continuous period of five years; Plaintiff and its predecessor did not grant them a license, written permission, or verbal permission to use any portion of the GE Property; Plaintiff and its predecessor did not grant them any interest in any portion of the GE Property; the Cassini Property and the parking area at the south end of the Cassini Property may be accessed without the use of the GE Property; and a motor vehicle may pass on their driveway that runs parallel to the fence without the use of the GE Property.

In their responses to the RFA, Defendants incorporated their “General Objections” to the RFA and asserted various specific objections, including objections on the grounds of attorney-client privilege, work product doctrine, vague and ambiguous, and calls for a legal conclusion. Defendants provided substantive responses to RFA Nos. 10, 12-13, 15-18, and 22-32, stating that they presently lack sufficiently knowledge and/or information to admit or deny the requests after conducting a reasonable inquiry. Defendants also provided a substantive response to RFA No. 14, stating that they admit their tenants, clients, guests, and themselves used the driveway and all of the real property up to the fence. Defendants further stated that they presently lack sufficiently knowledge and/or information to admit or deny the remainder of the request after conducting a reasonable inquiry.

a. Objections

Except as expressly discussed below, Defendants do not attempt to defend their objections to the RFA. The Court finds that the undefended objections are without merit and, therefore, overruled. (See Coy, supra, 58 Cal.2d at p. 220-221; see also Wellpoint Health Networks v. Super. Ct. (1997) 59 Cal.App.4th 110, 130 (“Wellpoint”) [the objecting party bears the burden to justify any claimed privilege].)

Defendants argue that Plaintiff’s definitions of the GE Property, the Cassini Property (the term assigned to describe Defendants’ property), and the Everett Property (the term assigned to describe Plaintiff’s property) are vague and ambiguous and otherwise “ill-defined.” In order to justify an objection on the grounds of vagueness and ambiguity, the responding party must demonstrate that the request at issue is totally unintelligible. (See Deyo v. Kilbourne (1978) 84 Cal.App.3d 771, 783; Standon v. Super. Ct. (1990) 225 Cal.App.3d 898. 903 [stating that a vague and ambiguous objection frequently considered a nuisance objection].) In other words, a vague and ambiguous objection should be sustained only when the nature of the information sought is not apparent. (Deyo, supra, 84 Cal.App.3d at p. 783.) Defendants’ arguments and objections to the RFA on the grounds of vagueness and ambiguity lack merit because Defendants fail to explain with particularity how Plaintiff’s definitions of the subject terms render the requests vague or ambiguous. The definitions provided by Plaintiff specifically define the properties at issue by their addresses and legal descriptions, which are attached to the requests. Therefore, the nature of the information sought is apparent. Consequently, these objections are overruled.

Defendants also argue that the term “license” as used in the RFA improperly calls for a legal conclusion. Objections to discovery requests on the ground of “calls for a legal conclusion” are improper. (West Pico Furniture Co. v. Super. Ct. (1961) 56 Cal.2d 407, 416-417, 421 (“West”).) Such objections, which are raised to the form of the question, are for the protection of a witness on oral examination. (Ibid.) When, as here, “the answer is to be made in writing, after due time for deliberation and consultation with counsel, an answer may be framed which avoids the pitfalls, if any, inherent in the form of the question.” (West, supra, 56 Cal.2d at pp. 416-417, 421.) Therefore, Defendants’ objection is overruled.

b. Substantive Responses

Plaintiff asserts that Defendants’ substantive responses to RFA Nos. 10, 12-18, and 22-32 are evasive because “it is obvious that the information reasonably available to Defendants does enable them to provide straightforward admissions or denials” and they do not lack sufficient knowledge or information to do so. (Mem. Ps. & As., p. 5.)

In opposition, Defendants maintain that they do not possess the requisite knowledge and/or information to admit or deny RFA Nos. Nos. 10, 12-13, 15-18, and 22-32 because they have not yet conducted a survey to determine whether the fence is located on the property line; the terms used by Plaintiff to describe the subject properties are ill-defined; their discovery is continuing; they cannot know whether or not Plaintiff has the ability to access the GE property; whether the properties assessed by the tax assessor and the properties owned by the parties are the same can only be determined by subpoenaing the record of the County Tax Assessor; the requests are poorly drafted; and the term “accessed” is vague. Defendants also maintain with respect to RFA No. 14 that they properly admitted as much of the matter as they could and they lack sufficient information to admit the remainder of the request.

While the Plaintiff believes that Defendants’ assertions of lack of knowledge and/or information are false, the Court is not in a position to question the veracity of the responses. Moreover, the responses appear to be code compliant because Defendants admit as much of the matter as they can, specify so much of the matter of which they lack sufficient information or knowledge, and state in the answer that a reasonable inquiry concerning the matter in the particular request has been made. (See Code Civ. Proc., § 2033.220, subds. (b)(3), (c).) Therefore, further responses are not warranted to RFA Nos. 10, 12-18, and 22-32.

c. Conclusion

The motion to compel further responses is DENIED as to RFA Nos. 10, 12-18, and 22-32.

5. FI No. 17.1 with respect to RFA Nos. 4, 6-8, and 24

FI No. 17.1 asks Defendants to identify: (a) all responses to the RFA that are not unqualified admissions; (b) all facts on which an identified response is based; (c) all persons with knowledge of those facts and their contact information; and (d) all documents that support the identified response and the contact information of the person who has each document.

In response to FI No. 17.1, Defendants did not provide any response whatsoever with respect to RFA No. 4. Regarding RFA Nos. 6-8 and 24, Defendants merely stated: Plaintiff “did provide [them] with verbal permission to use certain real property located adjacent to the fence separating the real property owned by Plaintiff and Defendants. See Responses to Special Interrogatories.” (Sep. Stmt., pp. 28-30.)

As Plaintiff persuasively argues, Defendants’ responses to FI No. 17.1 with respect to RFA Nos. 6-8 and 24 fail to identify all persons with knowledge of the facts supporting their qualified responses, all documents supporting their responses, and the contact information of the person who has each document. Consequently, Defendants’ responses to FI No. 17.1 with respect to RFA Nos. 6-8 and 24 are incomplete and further responses are warranted.

With respect to Defendants’ responses to FI No. 17.1 as they pertain to RFA No. 4, the Court notes that Defendants have now provided amended responses to RFA No. 4, admitting the majority of the request and denying that the adjacent properties are “easterly.” (See O’Connor Reply Dec., Ex. 22, p. 6.) Since Defendants’ amended responses to RFA No. 4 are not unqualified admissions and Defendants failed to provide any information in response to FI No. 17.1 regarding RFA No. 4, further responses to FI No. 17.1 are warranted with respect to RFA No. 4.

Accordingly, the motion to compel further responses is GRANTED as to FI No. 17.1 with respect to RFA Nos. 4, 6-8, and 24. Within 20 days of the date of the filing of the Order, Defendants shall serve Plaintiff with further, verified responses to FI No. 17.1 with respect to RFA Nos. 4, 6-8, and 24, without objections.

6. SI Nos. 14-15

SI No. 14 states “[i]f [your] answer to Interrogatory No. 14 is in the affirmative, please state all facts supporting [your] belief that the [GE Property] was included in the real property describe in the CASSINI DEED at the time [you] made any improvements to the [GE Property].” (Sep. Stmt., p. 35.) SI No. 15 states “[i]f [your] answer to Interrogatory No. 14 is in the negative, please state whether you requested permission from [Plaintiff] … before [you] made any improvements on the [GE Property].” (Sep. Stmt., p. 36.)

In their responses to the SI, Defendants incorporated their “General Objections” and asserted various specific objections, including objections on the grounds of attorney-client privilege, work product doctrine, vague and ambiguous with respect to the reference to “Interrogatory No. 14.”

In opposition, Defendants do not attempt to defend any of their objections to the requests. Thus, the objections are overruled and further responses are warranted. (See Coy, supra, 58 Cal.2d at p. 220-221; see also Wellpoint, supra, 59 Cal.App.4th at p. 130.)

Accordingly, the motion to compel further responses is GRANTED as to SI Nos. 14-15. Within 20 days of the date of the filing of the Order, Defendants shall serve Plaintiff with further, verified responses to SI Nos. 14-15, without objections.

II. Privilege Log

Plaintiff requests that the Court order Defendants to produce a privilege log because it appears that Defendants are withholding documents from production based on the assertion of various privileges. Defendants do not oppose Plaintiff’s request. Furthermore, it seems to the Court that production of a privilege log is appropriate given Defendants’ assertion of attorney-client privilege and work product doctrine objections in response to several of the RPD. (See Best Products, Inc. v. Super. Ct. (2004) 119 Cal.App.4th 1181, 1188-1189; see also Code Civ. Proc., § 2031.240, subd. (c).)

Accordingly, within 20 days of the date of the filing of the Order, to the extent Defendants are withholding documents from production based on the assertion of any privilege, Defendants shall serve Plaintiff with a privilege log that identifies each document withheld and sets forth sufficient facts for Plaintiff to evaluate the merits of the asserted objection.

III. Production of Documents

Plaintiff argues that the Court should order Defendants to produce “all of the documents that Defendants have indicated they will produce through their initial and amended responses.” (Mem. Ps. & As., p. 11:12-14.)

The Court construes this request as a motion to compel compliance pursuant to Code of Civil Procedure section 2031.320. That statute provides that if a party responding to a demand for inspection, copying, testing, or sampling fails to permit the inspection, copying, testing, or sampling in accordance with that party’s statement of compliance, the demanding party may move for an order compelling compliance with the discovery response. (Code Civ. Proc., § 2031.320, subd. (a).) All that has to be shown is that the responding party failed to comply with an agreement to produce. (See Code Civ. Proc., § 2031.320, subd. (a); Standon Co., Inc. v. Super. Ct. (1990) 225 Cal.App.3d 898, 903.)

Here, Defendants produced approximately 250 pages of documents in response to the RPD on May 2, 2016. (O’Connor Reply Dec., ¶ 5.) Plaintiff admits in its reply that it has not had an opportunity to review the production. (Ibid.) Moreover, Plaintiff does not provide the Court with specific facts or evidence demonstrating that Defendants have failed to produce particular documents in compliance with their responses to the RPD. Therefore, Plaintiff does not meet its burden to show that Defendants failed to comply with an agreement to produce.

Accordingly, the motion to compel compliance is DENIED.

IV. Request for Monetary Sanctions

In its moving papers, Plaintiff requested an award of monetary sanctions against Defendants in the amount of $4,655 pursuant to Code of Civil Procedure sections 2030.290, 2031.300, 2031.320, and 2033.290. In reply, Plaintiff requests an increased amount of monetary sanctions in the amount of $7,912.50.

Code of Civil Procedure sections 2030.290 and 2031.300 do not support Plaintiff’s request for monetary sanctions. Those statutes authorize the imposition of monetary sanctions only in connection with motions to compel initial responses to interrogatories and requests for production of documents and the instant motion is one to compel further responses and compliance. Next, Plaintiff is not entitled to an award of monetary sanctions under Code of Civil Procedure section 2033.290, which authorizes an award of monetary sanctions in connection with a motion to compel further responses to requests for admission, because it was unsuccessful on its motion to compel further responses to the RFA. Finally, Plaintiff is not entitled to an award of monetary sanctions pursuant to Code of Civil Procedure section 2031.320, which pertains to motions to compel compliance, because it did not demonstrate that Defendants failed to comply with an agreement to produce documents.

Accordingly, Plaintiff’s request for monetary sanctions is DENIED.